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5 signs a POA needs legal advice

I have to start this blog by correcting a common misconception - a "power of attorney" is a document, not the title of a person. It is a common mistake people make. The person who has been appointed by the power of attorney (or "POA" for short) to act on someone's behalf is actually called the "attorney".  Ok, now that's out of the way and we can begin!

You may have come across this blog because you have been appointed as someone's attorney for property and/or personal care. If that's the case, you may have already discovered that it is not necessarily a walk in the park.

We strongly suggest that you seek legal advice about your duties because:

(1) there are many ways that well-intentioned attorneys make errors that can lead to serious accusations (and even lawsuits)

(2) attorneys have legal duties that dictate how you must make decisions and keep records

(3) if you accidentally make mistakes or break the law, you could face serious financial and other consequences

Many of our clients are people who find themselves in hot water because they did not understand the duties of an attorney. Financial elder abuse is sadly all too common, and attorneys should ensure that they take steps to avoid or defend against such allegations. In these cases, being proactive is much better than being reactive.

So for those just getting started, here is an overview of some of the duties of attorneys as set out in the Substitute Decisions Act:

  • Review the POA carefully (seek advice from a professional if there are ambiguities)
  • Exercise your duties in good faith
  • Explain your duties to the "incapable person"
  • Consult from time to
    time with supportive family members and friends of the "incapable person"
  • Keep detailed
    accounts of all transactions (the law specifies what kinds of records you must keep - and note that you may be asked to produce them at a later date)
  • Encourage the "incapable person" to participate, to the best of
    his or her abilities, in decisions you are making on his or her behalf (but this does not mean you defer to that person's judgement)
  • Document document document (did I mention you should document?)

And if you're not an attorney yet but think you should be? Read on...

If your loved one has cognitive impairments it might be too late to have him or her sign a power of attorney. Sure, they might be able to write their name but the document could be legally invalid.

You can speak with a lawyer to find out whether making a power of attorney remains an option. Many lawyers will recommend your loved one first have a capacity assessment to confirm that he or she understands what a power of attorney is and actually wants to complete one.

If your loved one is no longer capable of a making a power of attorney, not to worry - guardianship likely remains an option. And the information above applies almost equally to guardians.

To learn more about guardianship you can check out guardianshiplawyer.ca. Or give us a call at 416-937-8768 if you would like to schedule an appointment to pursue guardianship. The process typically takes several months so it is best to begin sooner rather than later.

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